BALI, J. - (1.) SHIV Mohan Singh,who on attaining the age of superannuation,retired on 31. 7. 1997 claimed grant of overtime allowance for the period from 6. 12. 1990 to 10. 5. 1997 while he was working as Train Superintendent of Palace on wheels. He claimed to have over worked for 7700 hours and as per schedule of payment was entitled for payment of Rs. 3,50,908,90. The central Administrative Tribunal (in short `the Tribunal') vide impugned order dated 6. 6. 2003 dismissed claim of the petitioner being barred by time as also on merits. It is against this order passed by the Tribunal that the present writ petition has been filed.
(2.) BRIEFLY put, the case of the petitioner has been that he had worked on the train Palace on wheels from time to time for 7700 hours and as such, was entitled for payment of over-time allowance of Rs. 3,50,908,90. When for a period of about seven hours and as such, was entitled for payment of over-time allowance of Rs. 3,50,908,90. When for a period of about seven years, he was not given over time allowance, he made representation on 27. 2. 1997 i. e. about five months before the date of his retirement. He made two further representations dated 1. 3. 1997 and 21. 9. 1999 and yet, when the respondent authorities invoked no interest, he was constrained to file OA No. 79/2000 and the learned Tribunal wide order dated 10. 4. 2001 disposed of the same while directing the respondents to decide his representation by passing a reasoned and speaking order within two months from the date the petitioner was to make representation and to communicate the decision thereof to the petitioner within 15 days thereafter. The respondents,however, found no favour with the claim of the petitioner as his representation came to be rejected vide order dated 13. 6. 2001 (Anx. 7 ). It is against this order that challenge was made before the Tribunal, with the result already indicated above. Before we might notice the contentions raised by the learned counsel for the petitioner, it would be appropriate to mention for the petitioner, it would be appropriate to mention that the claim of the petitioner was held to be barred by time by virtue of the provisions contained in Sec. 21 of the administrative Tribunals Act,1985. The order passed by the Tribunal in OA No. 79/2000 pressed into service to overcome the bar of limitation was repelled by observing as follows: "it may also be pointed out here that filing of OA79/2000, which was disposed of finally when the pleadings were completes and the matter was made by the learned counsel for the applicant that direction may be given to the respondents to decide his representation which he will file within 15 days will not extend the period of limitation. Claim for grant of overtime allowance cannot be stated to be a subsisting cause of action so as to file on OA at any time,thus, the present OA at cannot be entertained in view of the provisions contained in Section 21 of the Administrative Tribunals Act, 1985". While rejecting the case of the petitioner on merits, the Tribunal observed as follows: "admittedly, the applicant was posted as Train Superintendent on record the letter dated 27. 1. 1983 and 17. 1. 81 (Anx,r/1 and Anx,r/2 respectively), which the payment of overtime allowance. The applicant and as such the validity of these orders cannot be gone into. The respondents vide impugned order dated 13. 6. 2001 (Anx,a/10) have specifically held that the applicant was working as Train Superintendent on POW from time to time during 1990 to 1997. Train Superintendent of POW is supervisory admitted that he was working as Train on POW, the most luxurious train of india, are quite different from the duties of Train Superintendent of Mail/express, passenger services of required to attend emergencies related with mechanical working of rolling stock and such emergencies are very rare because this train is well maintained. The applicant was regularly granted compensatory rest and weekly rest. He was given two compensatory rests and one weekly rest for every trip of journey performed. He was granted of work performed by him. The applicant has not O. A. Thus the specific stand of the respondents supervisory duties and in lieu of extra hours of work perfumed by him he was granted two compensatory rests and one weekly rest and in view entitled to payment of overtime allowance, has not been demolished at all rather the applicant has not made even a single averment as to how the findings recorded by the respondents vide impugned order dated 13. 6. 2001 (Anx. A/10) are not sustainable. " Learned counsel appearing for the petitioner vehemently contends that is is not the case that the petitioner might have slept over his rights. In fact, he made representation before his retirement which was repeated twice and when the respondents did not care even to respond to the three successive representation, the petitioner had filed OA No. 79/2000 in which, directions as mentioned above, were given. The bar of limitation u/s 21 of the Act thus could not be applied in the facts and circumstances mentioned above and in any case, once the Tribunal had give directions to decide the representation and which in fact was decide, terminus quo for limitation would commence from the date representation of the petitioner was rejected. On merits of the controversy, learned counsel contends that case of the petitioner was based upon proviso to Sec. 132 (4) of the Railways Act and the same could not be thwarted on the basis of instructions (Anx. r-1 and r-2 ). He further contends that over- time allowance is being granted to all Train Examiners running all trains excepts the Palace on wheels and even though, when the matter came up for hearing before the Hon'ble Bench then seized of the matter on 1. 2. 2005 when the counsel representing the railway while controverting that over time allowance was not being granted to all Train Examiners, sought time to file an affidavit of the competent authority of the Railway , on affidavit was filed which would only mean that the assertions made by the petitioner to the effect aforesaid remained uncontroverted. That being so, the petitioner and other equally situate and in the circumstances of India. Learned counsel appearing for the Railways however, joined issues with the counsel for the petitioner on all the points referred to above. we have heard learned counsel appearing for the parties and with their assistance. examined the records. The claim of the petitioner no doubt pertains to the period from 6. 12. 1990 to 10. 5. 1997 but it is conceded position relief, the petitioner made three successive representations, none of which was even responded to by the respondent Railways. It is also conceded position that the Tribunal in the earlier OA filed by the petitioner had directed the respondent railways to decide the representation of the petitioner and is is only pursuant to such directions that claim of the petitioner was considered and rejected vide order dated 13. 6. 2001 (Anx. 7) which impugned in the second O. A. filed by the petitioner. It is significant to mention that in respondent filed reply and contested the matter by specifically pleading that the O. A. was belated and there was deliberate delay which amounted to negligence on the part of the petitioner. It is despite the objection aforesaid that the representation of the petitioner was directed to be decided. It is no doubt true that the counsel representing the petitioner before the Tribunal at the time of hearing had submitted that necessary direction be given to the respondents to decide representation of the petitioner was directed to be decided. It is no doubt true that the counsel representing the petitioner before that tribunal at the time of hearing had submitted that necessary direction be given to the respondents to decide representation filed by the petitioner,within fifteen days from the date of passing of the order but the respondent Railways which was represented by counsel, did not object to decision of the representation as prayed for by the learned counsel for the petitioner on any ground, and in particular that the petition filed by the petitioner for the desired claim was barred by time by virtue of provisions contained in sec. 21 of the central administrative Tribunals Act,1985. The operative part of the order passed by the Tribunal in first OA filed by petitioner reads as follows: "in view of the submissions made before us. we direct the respondents to decide the representation, if filed by the applicant within 15 days from today, by a reasoned and speaking order within two months from the date of receipt of representation and the same shall be communicated to the applicant within 15 days thereafter. The applicant will be at liberty to approach the proper forum for redressal of his grievance, if he is so advised. "
(3.) IN the context of the facts as fully detailed above, the question that arises for determination is as to whether by virtue of provisions contained in Sec. 20 and 21 of the Act. the O. A. for the claim, as mentioned above,was barred by limitation. We have carefully heard learned counsel appearing for the parties. By virtue of provisions contained in Sec. 20 of the Act, the remedies as provided u/s 20 have first been exhausted. The Tribunal would thus not ordinarily admit a petition unless it was satisfied that the applicant had availed of all the remedies available to him under the relevant Service rules as to redressal of his grievance. The remedies available to him under the service rules. The remedies available to him under the Service rules, by virtue of sub-sec. (2) of sec. 20 would mean that a final order has been made buy the government or an authority and than an appeal or representation that may be made by such a person in connection with the grievance or where no final order has been made by the Government or any other authority with regard to the appeal or representation, the period of six months from the the date on which appeal or representation was made, has expired. The relevant provisions contained in Sec. 20 reproduced below would thus manifest that before a petition for any relief is made before the Tribunal, such a petition would not be admitted if the applicant has not availed his alternative remedy of appeal of representation, as the case may be, and if no appeal or representation is decided, when filed them petition shall not be entertained unless six months have expired. "20, Applications not to be admitted unless other remedies exhausted- (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under that relevant service rules as the� remedies available to him under the relevant service rules as to redressal of grievances. (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievance,- (a) if a final order has been made by the government or other authority of officer of other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance: or (b) where no final order has been made by the government or other authority or officer or regard competent to pass such order with made by such person it a period of six months from the date on which such appeal was preferred or representation was made has expired". Sec. 21 of the Act provides for limitation. The same in so far as it is relevant for the purpose of deciding the present case reads as follows: "21. Limitation (1) A tribunal shall not admit an application.- (a)in a case where a final order such as is mentioned in clause (a)of sub-section (2) of Section 20 has been made in connection with the grievance unless that application is made, within one year from the date on which such final order has been made; (b)in a case where an appeal or representation such as is mentioned in clause (b) of period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period six months. (2) Notwithstanding anything contained in sub- section (1),where,- (a) the grievance in respect of which an application is made at any time during the period of three years immediately preceding the data on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter of which such order relates; and (b ). no proceedings for the redressal of such grievance had been commenced before the said date before any High court. the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be clause (be) of sub-section (1) or within a period of six months from the said whichever period expires later. (3). . . . . . . . . . . . . " (9-A ). By virtue of the provisions contained in sec. 21 of the Act which provides for limitation, the Tribunal shall not admit an application beyond a period of one year form the the date on which final order as mentioned in clause (a) of sub-sec (2) of sec. 20 has been passed. By virtue of sub-clause (b) of sub- sec. (2)of sec. 20 has been passed. By virtue of sub-clause (b) of sub-sec. (1) of sec. 21 the Tribunal shall not admit an application beyond a period of one year from the date of expiry of the period of six months when the appeal or representation as mentioned in clause (b) of sub-sec (2)of sec. 20 has been made. In other words, petition filed beyond an year and six months from the date of making application or representation shall be barred by time. By virtue of provisions contained in sub-sec, (3) of sec. 21 the Tribunal has ample power to extend the period of limitation if the applicant might satisfy that he had sufficient cause for not making application within such period. ;